The Strategic Right – Oral Arguments at the Beginning of the 2017 Term

Several possible facets of the justices’ new oral argument strategies became apparent during the first week of oral arguments for the 2017 Supreme Court term.  The Court began with a series of high-profile cases – perhaps none as discussed and hotly contested as Gill v. Whitford which looks at gerrymandered voting districts in Wisconsin.  The Court is still acclimating the presence of the new ninth justice, Justice Gorsuch, and through this acclimation we are beginning to see a new dynamic for the Court.

The Week

At a very general level, the justices’ speaking amounts in the first week of oral arguments for this term do not look all that different from the first week of last term.  In particular the justices that spoke the most overall during the first week last term also spoke the most overall during the first week of this term.

The figure for the justices’ relative word count percentage last term is below:


This term the figure looks like this (the relative percentages are on the left and the absolute word counts are on the right):

During the first week of this term as compared to last term Justice Breyer spoke more relative to the other justices and Justice Kagan spoke a bit less.  The four justices that spoke the most overall, though, Breyer, Kagan, Sotomayor, and Roberts are the four justices that spoke the most overall during the first week of 2016 oral arguments.

Looking at “how,” “when,” and “where” the justices spoke so far this term though presents a strategic picture of Justices Gorsuch’s, Roberts’, and Alito’s approaches.


First to the question of “how.” When we look at information gathering in terms of asking questions, the order of the justices shifts perceptively.


In terms of overall counts, Justice Breyer asked two more questions than Justice Alito.  Justices Alito, Roberts, and Gorsuch all asked more questions than Justices Sotomayor and Kagan who spoke more words than these justices.  The questions counts may show a more efficient means of gaining specific information in terms of fewer words per question.


The strategic decisions on the part of Justices Gorsuch, Roberts, and Alito are clear in how their speech breaks down between arguments.  The figure below shows the justices’ word counts for each of the six cases argued last week.


While Justice Breyer spoke the most by a large margin in Epic Systems, Jennings, Wesby, and Class, his word counts were noticeably lower in Dimaya and Gill.  In Dimaya Justice Gorsuch spoke the most of the justices, almost doubling the word count of the next most vocal justice in the case, Justice Kagan.  By contrast, Justice Gorsuch was silent during the first oral argument of the term in the Epic Systems case.  In Gill, Justice Alito spoke 1142 words and Chief Justice Roberts spoke 581 words.  Alito’s word count of 1,142 words almost doubles that of Justice Kagan at 623, which is the next highest after Roberts.

The question counts split between the cases tells an even more pronounced version of the same story.


The justices’ question counts are relatively tightly clustered in most of the cases aside for Dimaya and Gill.  Justice Gorsuch’s 26 questions in Dimaya far surpasses the 12 questions from Justice Sotomayor who asked the second most questions during these arguments.  Justices Roberts’ and Alito’s question counts in Gill are even further differentiated from the counts for the other justices relative to their word counts.  Interestingly, Justice Kennedy asked many more questions in the criminal case Class than any of the other justices even though he spoke fewer words than three of the other justices during that argument.

From these data we potentially see a set of justices choosing to talk at specific points where they find certain utility.  When they do so, they usurp speaking opportunities from other justices (in particular from Justice Breyer).  When the utility factor is not there (as in Epic Systems for Justice Gorsuch) they may only minimally engage in the oral argument if at all.


Looking at the Dimaya and Gill arguments in particular, the justices appear to have specific points within each argument where they choose to engage.

First in Gill, the gerrymandering case, Justices Alito, Roberts, and Gorsuch were quite involved in discussion with the appellee’s attorney, Paul Smith, while not with the appellant’s attorney or with the arguing amicus.  During the appellee’s portion, Justice Alito spoke the most with 862 words, then Chief Justice Roberts with 736, and third, Justice Gorsuch with 425 words.  The figures below show the justices word counts for the three segments of oral argument (from left to right are appellant’s argument and rebuttal, amicus’, and appellees).

Justices Breyer, Ginsburg, and Kagan hardly spoke during the appellees argument and Justices Kennedy and Sotomayor did not speak at all.  The lasting message expressed by Justice Roberts during this part of the argument was his questioning the “sociological gobbledygook” supporting, in his opinion, bringing the Court into an area designated for the political branches of government.


Justice Kennedy’s choice not to speak during this segment of the argument may convey his position in the case, although since he chose to speak minimally during the other portions of the argument his views in the matter are hardly clear (165 words during the appellant’s arguments and 130 during the amicus’).

During the appellants argument Justice Breyer had his longest unbroken speech during oral arguments to date noted in the dark blue in the figure above.  Justices Sotomayor, Kagan, and Ginsburg were much more involved in the amicus’ and appellant’s segments than they were in the appellee’s, and conversely Chief Justice Roberts said little during the appellant’s portion and almost nothing during the amicus’ turn.

In Dimaya, Justice Gorsuch was quite vocal during the petitioner’s argument while less so during the respondent’s argument. Like Chief Justice Roberts’ remarks in Gill, Justice Gorsuch pushed back in Dimaya against the respective roles of Congress and the Court.


While in Dimaya this question of politics is in the criminal context, in both instances the justices attempt to separate out political from judicial decisions.  Both of the justices (Roberts and Gorsuch) also stake relatively clear positions on the merits with the tenor of their questions and statements.  The following figures depict the words spoken during the petitioner’s (left) and respondent’s (right) arguments in Dimaya.

Justice Gorsuch spoke 866 words during the petitioner’s arguments in Dimaya compared to 169 during the respondent’s.  He also asked 22 questions during the petitioner’s arguments. The justice with the next most questions during this segment was Justice Sotomayor with ten.  None of the justices had particularly high word counts during the respondent’s argument in Dimaya as Justice Alito led the way with 334 words.

Oral arguments at the beginning of this term begin to tell us more about Justice Gorsuch and about the justices’ new dynamic as a unit.  Justice Gorsuch is somewhat unique in occasionally speaking volumes and other times not speaking at all. This is consistent with his approach at the end of the last term.  Justices Gorsuch, Alito, and Chief Justice Roberts appear willing to let the more liberal justices dominate oral arguments when they lack the motivation to do so, yet in instances such as specific portions of the Gill and Dimaya arguments, they appear willing and able to monopolize the speaking time, to articulate clear positions, and to prevent the other justices from engaging to the same extent.


On Twitter: @AdamSFeldman

Transcript analysis uses qdap in R.

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